The FAA wants to talk to me … now what?
By Kathy Yodice
What should a pilot do when the FAA “wants to talk?” The request for dialogue might come in a letter or a telephone call from an FAA inspector. It could be a controller’s question to you over the radio or a request that you telephone the tower after landing. Whenever the FAA wants to initiate a conversation to explain some incident involving your flying activities, you need to be careful as there can be a lot at risk.
A couple of guiding principles: Before responding to the FAA in any way, take the opportunity to reflect on what happened to cause the FAA’s inquiry and what your rights and options may be. Our initial instinct may be to tell the FAA everything we know and speculate about what happened, but this could be exactly the wrong thing to do. Further, if a response is required or warranted, whatever response you give to the FAA should be appropriate in scope, truthful, and not misleading. In most cases, you have no obligation to say anything or to provide anything to the FAA; and in those limited circumstances when you are required to respond to the FAA, there is usually an opportunity to gather yourself together to prepare a proper response. In other words, take a deep breath, and seek competent counsel. If you are a participant in AOPA’s Pilot Protection Services, which includes the Legal Services Plan, you are entitled to legal consultation for any alleged FAA violations, so by all means give us a call first to discuss the situation. For the potential of a future event, the plan is merited for this reason alone.
Two general circumstances within FAA regulations impose on you a duty to respond either in writing or in person: if you experience an in-flight emergency, and if you are requested to present your certificates and logbooks for inspection.
In the first circumstance, if a pilot experiences an emergency that requires a pilot to deviate from the regulations or that results in the controllers giving the pilot priority, then FAR 91.3(c) and 91.123(d) require that the pilot submit a written statement to the FAA, but only if requested to do so by the FAA. If the FAA does not request a report, there is no requirement to submit one.
In the second circumstance, if a reasonable request is made by the FAA to see your pilot certificate, including your medical certificate and photo ID, or to see your pilot logbook or your aircraft maintenance records, then FAR 61.51(i) and 91.417(c) require that you must make this information available to them. In addition, although not specifically requiring presentation, FAR 91.203 requires that you carry on board your aircraft an appropriate and current airworthiness certificate and an effective U.S. registration certificate. So, if you’re operating an aircraft and an FAA inspector inspects your aircraft, the regulation requires that these documents be accessible to passengers or crew, effectively creating a presentation requirement.
Otherwise, if the FAA contacts you for information about an incident, it is your decision whether or not to respond; and if you do respond, it is usually within your control as to when and how much information you provide to the FAA. There is no requirement to answer the FAA and give them any information, and there is nothing the FAA can do in action against you for failing to respond. If an FAA inspector sends you a letter of investigation and you write back, if an FAA inspector calls you and you speak with him or her, or if the controller asks you about a possible deviation and you discuss this with him or her, be aware that any information that you provide will be used in the FAA’s investigation of the matter. So, if there is a dispute as to the facts, or if the FAA might have some trouble establishing some necessary element of proof, you’ll want to think hard about what to say, or not say.
On the other hand, if there is no question as to the facts or the FAA’s ability to establish them easily, or you have information that reliably contradicts the FAA’s thinking about the matter, then there may be less risk, and more advantage, to speaking with the FAA and you may be more apt to respond. Knowing the difference is difficult, and knowing the nuances of the FAA’s different enforcement programs and policies, such as the FAA’s Enforcement Decision Tool, the Aviation Safety Program, the Remedial Training Program, and the "Ticket" Program, may be important.
At the core of all of this is the notion to think before you act and be cognizant of your regulatory responsibilities and the possible consequences of your actions. Make an informed assessment and decision. We want to trust the FAA to help guide us and to do the fair thing when something happens, but that sometimes takes a little thinking and a little planning on our part to be sure we’re not making matters worse for ourselves.
Kathy Yodice is an aviation attorney for AOPA’s Pilot Protection Services and Legal Services Plan. She’s assisted AOPA members for more than 13 years and is a former FAA attorney. Kathy owns a Cherokee 180 and has been a pilot since 1994.